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Keller v. Odin Management8/19/1998
he plaintiff arrived at the mall. McFadden also acknowledged that he was aware of H & R Block employees' "history" of remaining in the office after the mall had closed to finish paperwork. Thus, Odin's duty to clear ice from the sidewalks encompassed the risk that employees would slip and be injured while entering or leaving the building after the mall had closed.
Several witnesses testified that they did not observe any indication that salt had been applied to the area where plaintiff fell. Odin asserts that it lacked the personnel to effectively clear ice from the mall parking lot and sidewalks. However, there was testimony that on the date of the accident, a maintenance worker remained on the premises for some time after the mall closed. It is not unreasonable to expect Odin to have instructed this worker to apply salt to the area around and leading toward the back service doors, which were the only available exits after the main mall entrances were locked.
The plaintiff has presented prima facie evidence showing that ice located on the sidewalk created an unreasonably dangerous condition, and that Odin's failure to discover and take reasonable measures to remove the ice was a breach of the duty owed to plaintiff as an employee of the tenant, and was a substantial factor in bringing about her fall and injury . The testimony demonstrated that Odin's inaction was a cause-in-fact of plaintiff's harm. At this point, plaintiff had established her case by a preponderance of the evidence.
After reviewing the record and considering the foregoing circumstances, we conclude that the trial court was clearly wrong in granting the motion for involuntary dismissal. Accordingly, we reverse that part of the judgment dismissing plaintiff's claims against Odin and its liability insurer and remand this case for further proceedings.
Indemnification Claim
H & R Block contends the trial court erred in granting Odin's motion for summary judgment and in ordering H & R Block to indemnify and defend Odin against any claims in this action. H & R Block argues that it is not liable for indemnification under the lease because plaintiff's accident did not occur on the leased premises. Summary judgment should be granted when the pleadings, depositions and interrogatories, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.
Paragraph 7 of the lease agreement between Odin (lessor), and H & R Block (lessee), provides that the lessee shall indemnify, defend and save harmless the lessor from any and all claims or liability resulting from the lessee's act or omission, and the lessee's use or occupancy of the premises. A lessee cannot be held liable on the basis of his lease for injuries occurring outside of the leased premises. May v. Acadiana Regional Airport, 562 So.2d 47 (La. App. 3rd Cir. 1990).
In the present case, the lessee agreed to lease specific space within the mall. The lessor maintained control of the parking area and sidewalks outside of the mall. Although the accident did not occur on the leased premises, Odin contends that the lessee must provide indemnity because plaintiff was injured in connection with the lessee's "use" of the premises. In support of its contention, Odin cites Billizone v. Winn Dixie, Inc., 521 So.2d 431 (La. App. 4th Cir. 1988), where the court found that the lessee store was at fault for an accident that occurred in a grocery cart corral located in the common area of the shopping center. However, the factual situation in Billizone, supra, can be distinguished from that of the present case, in t
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